5 Things That Can’t Be Copyrighted

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by Jonathan Bailey

Modern copyright law can feel extremely broad at times. Every creative work made, whether it is a doodle on a napkin, a photograph or a poem, once it is fixed into a tangible medium of expression, the creator holds the copyright to it. No notice nor any further action is required (though registration with the U.S. Copyright Office has many added benefits).

Still, there are many things that can not be copyrighted. They either don’t fall under the jurisdiction of copyright or don’t qualify for its protection. There are also exemptions and that place some content immediately into the public domain.

So if you’ve ever wondered about the things you can’t copyright, here is a short list of five of the more important ones.

1. Titles and Names

Copyright protection does not extend to titles, names, slogans or short phrases, the Copyright Office has made that much very clear. You can not copyright your name, the title of your post or any short phrase that you use to identify a work.

The reason is that copyright is designed to protect works of creative authorship, it is not designed to protect how that work is identified in the marketplace, the same goes for people and places. Furthermore, such short phrases rarely meet the requisite level of creativity to be considered for copyright protection.

Caveat: Titles may not be copyrighted, but if they are used to identify a business, good or service in the marketplace, they can be given trademark protection. If you use a title in a way that might cause confusion in the marketplace, there could be trademark issues. However, if you want to make a post entitled “5 Things That Can’t Be Copyrighted”, you are free to do so.

2. Ideas

Ideas can not be copyrighted because they are not fixed into a tangible medium of expression. For a work to be copyrighted, it has to be written down, saved to a hard drive or somehow otherwise fixed.

For example, if you give a speech but fail to write it down first and it isn’t recorded, there is no copyright protection. Likewise, if you tell an idea to a friend, you don’t receive copyright protection if they run with it and use it for themselves, that is, unless you write it down.

However, even ideas that are fixed do not receive protection in and of themselves. Rather, it is the expression of the idea that is protected. My “5 Things That Can’t Be Copyrighted” post is fixed, but you can certainly write your own post with the same title and idea. However, you can not use my exact words, unless, of course, you follow my CC license.

Caveat: When it comes to derivative works, there can be a lot of gray area between an uncopyrightable idea and an infringing derivative. You can, for example, write your own book about a boy wizard and a wizard school, but you can’t use any of the characters from Harry Potter. Where the line is drawn is often murky and usually decided on a case-by-case basis. Also, in many cases ideas can be patented, such as inventions, but that enters into another area of intellectual property.

3. Works By the U.S. Federal Government

Works by the U.S. Government are placed directly into the public domain as the Federal government is barred from holding copyright in its work. This is why NASA’s images, which are very popular on the Web, can be freely copied and shared and also why laws and statutes can be posted anywhere online.

There are many reasons for this, the first being that taxpayer money is spent on creating the works so it is fair they should be given back to the populace. Also, it’s a freedom of speech issue as the government can not use copyright to stifle criticism.

Caveat: This is not true in all countries. Australia, Canada and the UK all have crown copyright, that enables the government to hold copyright protection to certain works. Also, the U.S. government can hold copyrights in works if they transferred to it, for example by contractors. Also, the government has other laws, such as state secrecy laws, to prevent the distribution of information.

4. Works Without Authorship/Facts

Though the photos that come with your calendar are probably copyright-protected, the calendar itself is not. Likewise, you can’t copyright the lines on a notebook-ruled paper or, sadly for the phone companies, even telephone directories are not protected.

The reason is that a work has to have a requisite level of creativity in order to qualify for copyright protection and if a work is just a repetition of facts without any creativity, it isn’t protected. This is true even if a great deal of effort went into making the product, as with a phone book.

Likewise, facts and information can’t be copyrighted though the expression of those facts often can be.

Caveat: The level of requisite creativity is actually fairly low. A phone book may not be copyright protected, but a top ten list of the funniest names in the phone book might be. Also, other countries, including the UK and Australia, follow a “sweat of the brow” doctrine that says a collection of facts can be copyrighted if the collector underwent a great deal of effort to compile them (and didn’t merely copy from another source).

5. Fashion

This may surprise many, but fashion designers, currently, enjoy no copyright protection in their work. Their designs are not covered under the current code even though architectural and even vessel hulls are protected.

The reason is because fashion pieces are considered useful articles and, as such, only enjoy copyright protection for certain elements and “only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”

In short, a pattern on a shirt might be copyrightable, but the shirt itself is not. Likewise, an intricate belt buckle design might qualify for protection but not the belt itself.

However, the overall cut, colors and style do not enjoy any protection at all.

Caveat: Fashion designers can, if they wish to go through the time and expense, patent their designs. Also, as mentioned above, elements of a useful article may qualify for copyright protection separate from the work itself. Finally, this is not universally true and legislation is almost constantly being circulated to weigh the possibility of expanding copyright protection to cover fashion. Finally, do note that trademark still protects the names of the companies that make and distribute the clothing.

Bottom Line

Copyright is everywhere. Every video, every picture, every written piece, every audio file, every sculpture, every building design created this year will be copyright protected, at least initially and at least to some degree.

However, there are places that copyright’s protection does not reach and those places are worth noting just as strongly as what it does protect.

Regardless, the next time someone says that everything is copyrighted these days, here are five examples of things that aren’t and, in most cases, likely never will be.

This work is licensed under a Creative Commons Attribution-ShareAlike 3.0 United States License.

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Benefits of Copyright Registration

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Although registration is not a legal requirement for a copyright to exist, there are many important advantages of federal copyright registration. A copyright must be timely registered in order to take legal action against an act of infringement. Without federal registration, you cannot legally prevent someone from copying or using your original work.

Advantages of federal copyright registration include:

  • Copyright registration establishes a public record of your copyright.
  • Your copyright must be registered in order to take legal action against an act of infringement.
  • If registered within five years of publication, your registration certificate is prima facie evidence of the validity of your copyright.
  • If registered within three months of publication or before an infringement occurs, once proven, statutory damages of up to $150,000 plus attorney’s fees could be awarded to you as copyright owner, even if your actual damages are minimal.
  • Registration provides powerful ammunition against potential infringement.
  • If you don’t register your copyright and someone else claims your work as their own, you will have to prove that it is actually yours. Registration avoids this burden of proof.
  • Copyright encourages creativity by giving exclusive property rights to “works of authorship,” enabling the creator to reap financial rewards from their works by controlling access to the works in the marketplace.

The United States has copyright treaties with most countries throughout the world, and as a result of these agreements, each country respects the copyrights of the others. Currently, a U.S. copyright is honored in 190 countries around the world.

For more information on registering your works with the US Copyright Office, click here.

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Sampling

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Sampling occurs when a portion of a prior recording is incorporated into a new composition. When a song is sampled without permission, copyright infringement of both the sound recording (usually owned by the record company) and the song (usually owned by the songwriter or publishing company) has occurred.

In order to legally use a sample, you will need to contact both the owner of the sound recording and the copyright owner of the underlying musical work for permission. License fees for sampling vary greatly and depends on the following:

  • how much of the sample you intend to use
  • the music you intend to sample
  • the intended use of the sample in your song

Licenses can be granted for free, for a percentage of the mechanical royalties (i.e., a couple cents for each record pressed), or for a flat fee. As there are no statutory rates for samples, the copyright owner can charge whatever he wants and does not have to let you use his work at all.

Using samples without permission can lead to you paying statutory damages to the copyright owner from $500-$100,000 per infringement, and a court can even make you to recall and destroy all of your infringing albums.

Do not rely on the “fair use” doctrine or the myth that you can use a certain number of seconds of someone’s song without penalty. Get permission.

– via entertainerlaw.com

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Public Domain

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A public domain work is a creative work that is not protected by copyright and which may be freely used by everyone. The reasons that the work is not protected include:

  • the term of copyright for the work has expired
  • the author failed to satisfy statutory formalities to perfect the copyright
  • the work is a work of the U.S. Government.

Things to note:

  • Be careful when using songs that appear to be public domain. Just because it’s old doesn’t mean it’s public domain.
  • An arrangement of a public domain song can be copyrighted. For example: the song “Rockin’ Robin” is in the public domain, but the arrangement made famous by Michael Jackson is under copyright.

The current status of a work’s copyright protection in the United States is as follows:

WORKS PUBLISHED 1922 & Prior:

These works are in the Public Domain.

WORKS PUBLISHED 1923-1963:

Work is under copyright when published with notice.

The original term is 28 years, which could be extended to a total of 95 years from publication (first renewal of 47 years w/an extension of 20 years, for a total renewal of 67 years). If not so renewed, or if published without notice, the work is now in public domain.

Under the 1909 Act, works published without notice went into the public domain upon publication. Works published without notice between January 1, 1978 and March 1, 1989 (the effective date of the Berne Convention Implementation Act) retained copyright only if efforts to correct the accidental omission of notice was made within five years, such as by placing notice on unsold copies. 17 U.S.C. § 405.

WORKS PUBLISHED 1964-1977:

Work is under copyright when published with notice.

Work enters the public domain 95 years after the publication of the work (Original term is 28 years, with an automatic renewal of 67 years)

WORKS PUBLISHED Before 1978 but not published:

Work enters the public domain 70 years after the death of the longest surviving member, or on 12/31/2002, whichever date is greater.

Protected from 1/1/1978, the effective date of the 1976 Act which eliminated common law copyright.

WORKS CREATED Before 1978 but published between 1978 & 2002:

Work enters the public domain 70 years after the death of the longest surviving member, or on 12/31/2047, whichever date is greater.

Protected from 1/1/1978, the effective date of the 1976 Act which eliminated common law copyright.

WORKS CREATED After January 1, 1978:

Work is under copyright when fixed in a tangible form (written, recorded, etc.)

Work enters the public domain 70 years after the death of the longest surviving author.

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Types Of Publishing Income

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Mechanical & DPD

A Mechanical License is required when a label wants to release a song on a CD. If they want to release the song digitally (i.e. iTunes, etc.), a Digital Phonorecord Delivery License (DPD) is required.

The royalty rate for this type of use (better known as the statutory rate) is set by the Library of Congress, and is currently:

  • $0.091 per song sold (for songs five minutes and under)
  • $0.0175 per minute (for songs over 5 minutes long), rounded to the next minute.
    Example: a song timing of 5:01 would round up to 6 minutes, resulting in a rate of $0.105 per song sold (6 x $0.0175)

Synchronization

A Synchronization License is required when a song is placed onto an audiovisual use (in a TV show, music video, movie, etc.). This is licensed and paid by the production company of the audiovisual use, usually in a lump sum. This payment is negotiable, depending on the songwriter’s bargaining power.

In a synchronization use, both the master copyright & the publishing copyright must be licensed, which means more money for those who self-publish & own their own masters.

Public Performance

When a song is broadcast in a public medium for public consumption (on the radio, in a commercial, at a concert, in a restaurant, etc.), Performance Royalties are generated.

These royalties are licensed & paid to Performance Rights Societies (PROs), who then pay the writers and the publishers. The PROs in the US are:

(NOTE: You can only be affiliated with one of them at a time.)

Print

Whenever your song is sold as in print form (lyrics, sheet music, etc.)

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Types Of Publishing Deals

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Standard Publishing Deal:

The songwriter is signed exclusively to a publisher for a time period, and is given an advance check against future royalties (the amount of which is negotiated & depends on the writer’s bargaining power). The publishing company then co-owns any songs you write during this period, takes care of the administration & exploitation of the catalog, and is entitled to the publisher’s share of the royalties.

copub

Co-Publishing Deal:

The songwriter and the publisher are co-owners of any songs written during the contract period. The songwriter collects the 50% writers share, and as “co-publisher”, splits the publisher share 50/50 with the publisher. In the end, the writer receives 75% of the income, and the publisher receives 25%.

admin

Administration Deal:

The songwriter licenses a selection of their self-published songs to an outside publisher (or independent administrator) for a time period. The publisher is responsible for handling the administration on behalf of the songwriter, and collects a fee of 10-20%. In this deal, the writer retains 100% of the copyright.

Other types of publishing deals include:

  • Single song agreement: the writer grants publishing rights for one or more songs to a music publisher.
  • Collection agreement: like an administration deal, except the publisher isn’t responsible for exploiting the copyrights. Usually handled by an accountant, attorney, or business manager, the “publisher” only collects royalties on behalf of the writer.
  • Purchase agreement: when one music publisher acquires the catalog of another publisher (whole or partial).
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What Is A Music Publisher?

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A music publisher is a company responsible for exploiting the copyrights of its songwriters and composers. This means pitching music to to potential licensees (artists, labels, TV/Film executives, etc.), taking care of all licenses and other paperwork on behalf of the songwriter, and ensuring they receive payment when their compositions are used. In return, they are entitled to a piece of the revenue generated.

If you haven’t signed a publishing deal, YOU ARE YOUR PUBLISHER! If you feel like you can’t take on the task of exploiting and administering your song catalog, then you should look into getting a publishing deal.

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Composition vs. Recording

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When listening to a song, you are experiencing two separate copyrights: the sound recording (the sound you hear) and the underlying composition (the music/lyrics). Music publishing deals with the copyright of the underlying composition.

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A good example of the difference between the two is the song “I Will Always Love You”. Dolly Parton wrote and performed the song in 1973. Nineteen years later, Whitney Houston recorded the same song.

Two different master recordings, same composition.

While their respective record labels own the master recordings, Dolly Parton & her publisher own the copyright for the underlying composition (since she wrote it), and they collect publishing revenue for BOTH versions. Suffice to say, it pays to be a writer!

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